Opinion
Court of Appeals No. A-11788 No. 6430
02-08-2017
JAMES CANTWELL ANDREW, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Lindsay Van Gorkom (opening brief), and Renee McFarland (reply brief and oral argument), Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3DI-13-341 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Dillingham, Patricia Douglass, Judge. Appearances: Lindsay Van Gorkom (opening brief), and Renee McFarland (reply brief and oral argument), Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
James Cantwell Andrew appeals his convictions for failure to stop at the direction of a peace officer and resisting arrest. He asserts that the trial court erred when it denied his motion for a mistrial based on a mid-trial discovery violation by the State. Although we agree with Andrew that the judge erred in failing to find a discovery violation, we conclude that the jury's guilty verdicts were not affected by this error. Accordingly, we affirm Andrew's convictions.
Background facts and proceedings
On the evening of August 12, 2013, village public safety officers saw James Cantwell Andrew driving a four-wheeler along a road in a residential area of New Stuyahok. Andrew had a passenger on the back of the four-wheeler and he appeared to be weaving off and on the road in a reckless fashion. Sergeant Dan Decker turned on his overhead lights, signaling for Andrew to stop, but Andrew drove onto a trail and did not stop. Several minutes later, the officers contacted Andrew near his residence. The officers reported that Andrew smelled of alcohol and was swaying back and forth. When asked whether he had been drinking, Andrew said he had consumed a "couple of shots." Andrew refused to perform field sobriety tests.
When Decker told Andrew that he was going to be arrested for driving under the influence (DUI), Andrew pulled away from Decker's grasp, held onto the four-wheeler's rack, and allegedly began kicking at the officer. Decker later testified that Andrew kicked him in the stomach and the knee before the other officers succeeded in taking Andrew to the ground and handcuffing him.
Andrew was arrested and charged with second-degree failure to stop at the direction of a peace officer, driving under the influence, fourth-degree assault, reckless endangerment (for carrying the passenger), and resisting arrest. Because of Andrew's prior DUI convictions, he was later indicted for felony DUI.
AS 28.35.182(b).
AS 28.35.030(a)(1).
AS 11.41.230(a)(1).
AS 11.41.250.
AS 11.56.700(a)(1).
AS 28.35.030(n).
Prior to trial, Andrew was given discovery which included various police reports. The police reports stated that Andrew was yelling and combative towards the police officers even after he was arrested and transported to the police station. However, the reports did not contain the substance of any specific statements made by Andrew at the police station.
During the State's opening statement at trial, the prosecutor informed the jury that, while Andrew was at the police station, he told the officers that he wanted to perform field sobriety tests. Andrew's attorney promptly objected, asserting that he was unaware of such a statement and had never been provided any discovery about such a statement. Superior Court Judge Patricia Douglass overruled the objection, and the State continued its opening statement, again referring to Andrew's request for field sobriety tests and explaining that the request was refused because "Sergeant Decker had already been assaulted and he did not want to take that risk to let [Andrew] out of the jail cell and let him out of his handcuffs."
During opening statements, the defense attorney stated that the case was "all about a lack of evidence" and that the State would not be able to prove any of the charged offenses beyond a reasonable doubt.
The State then called its first witness, Sergeant Decker, who testified about the events leading up to the stop and Andrew's behavior during and after the arrest. When Decker started to mention statements Andrew made at the police station following his arrest, Andrew's defense counsel objected and again informed the court that the State had not provided the defense with any of these alleged statements — a violation of Alaska Criminal Rule 16. The attorney argued that because of this discovery violation, the State should not be permitted to rely on these statements at trial.
The trial court overruled the defense's objection, concluding (erroneously) that the State had provided everything it needed to provide and that there was no Rule 16 discovery violation. The trial court criticized the defense attorney, declaring that if he had wanted to know the substance of the "yelling" referred to in the police reports, he should have asked the prosecutor or sought to depose the officers.
Sergeant Decker was then allowed to testify to specific statements that Andrew allegedly made during his time in police lock-up. Decker testified that, at the police station, Andrew called the officers "fuckers" and "even went so far to tell us if we weren't wearing our badges, he'd take all three of us out." Decker also testified that Andrew said something to the effect that he would "kick our asses." Lastly, Decker testified that Andrew requested to perform field sobriety tests, but the officers determined that it was not safe to unhandcuff him.
During his initial cross-examination of Sergeant Decker, the defense attorney established that none of these statements were made during the time period relevant to the failure to stop, resisting arrest, and assault charges. The defense attorney also established that none of these statements had been recorded.
After establishing these facts, the defense attorney asked to adjourn for the day so that he could discuss with Andrew whether to file a motion for a mistrial based on the State's failure to disclose these statements to the defense prior to trial. (The defense attorney also initially indicated that he wanted to file a Stephan motion based on the failure to record these statements, but he later acknowledged that Stephan was inapplicable because the statements were not in response to custodial interrogation.)
See Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985) (holding "that an unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect's right to due process [] under the Alaska Constitution").
The trial court granted the request to adjourn the trial for the day, but the court told the defense attorney that he would need to provide the court with case law if he decided to proceed with the motion for a mistrial.
The next morning, the defense attorney filed a motion requesting a mistrial based on the State's discovery violations. The memorandum of law accompanying this motion reviewed the relevant case law and pointed out that the prosecutor's failure to disclose the substance of Andrew's alleged statements to the officer directly violated Criminal Rule 16(b)(1)(A)(ii), which requires the prosecuting attorney to disclose "[a]ny written or recorded statements and summaries of statements and the substance of any oral statements made by the accused[.]"
The defense attorney argued that a mistrial was the appropriate remedy under Bostic v. State because he claimed that his trial preparation, jury voir dire, and defense strategy had been prejudiced by the late disclosure of these statements.
Bostic v. State, 805 P.2d 344, 348 (Alaska 1991) (holding that the State "bears the burden of showing that [the defendant] has not been prejudiced" by the State's failure to disclose witness prior to trial and that continuance of trial is not the only remedy available for State's violation of criminal rule requiring disclosure).
The trial court denied the motion for a mistrial, ruling again (erroneously) that there had been no discovery violation. The trial court also ruled that, even if there had been a discovery violation, there had been no prejudice because the substance of the statements allegedly made by Andrew at the police station was "cumulative" of the other evidence of combativeness that had already been introduced.
After the trial court denied the motion for a mistrial, the defense attorney asked for an additional continuance of an hour to prepare for cross-examination of Sergeant Decker and the other witnesses relating to the statements that the judge had just ruled would be admitted despite the discovery violation. The attorney also stated that he had spent the previous night and morning researching and drafting the motion for a mistrial and had not had time to prepare for cross-examination. The trial court denied the request for an additional continuance.
The trial proceeded without any further reference to Andrew's alleged statements at the police station. Andrew's attorney did not question Sergeant Decker any further about these statements and none of the other witnesses mentioned them. In addition, neither the prosecutor nor the defense attorney referred to the alleged statements during their closing arguments.
The jury ultimately acquitted Andrew of the fourth-degree assault charge, but convicted him of the failure to stop and the resisting arrest charges. The jury was unable to come to a verdict with regard to the DUI charge, and the court declared a mistrial on that count. The trial court also granted a judgment of acquittal on the reckless endangerment charge prior to the jury deliberations.
This appeal followed.
The trial court erred in ruling that there was no discovery violation
Alaska Criminal Rule 16 imposes discovery obligations on the parties to a criminal case in order to "provide adequate information for informed pleas, expedite trial, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process."
Alaska R. Crim. P. 16(a).
Criminal Rule 16(b)(1)(A)(ii) specifically provides that the prosecuting attorney shall disclose "[a]ny written or recorded statements and summaries of statements and the substance of any oral statements made by the accused[.]" (Emphasis added.) This duty extends to statements that are in the possession of investigating officers.
See Alaska R. Crim. P. 16(b)(4)(ii) ("the prosecuting attorney's obligations extend to material and information in the possession or control of ... any others who have participated in the investigation or evaluation of the case who ... have reported to the prosecuting attorney's office").
Here, there is no question that Sergeant Decker was aware of the specific statements Andrew made after his arrest and that they were therefore discoverable under Criminal Rule 16(b)(1)(A)(ii). Moreover, the record indicates that the prosecutor learned of the statements during an interview with Decker at least a day before trial.
Id.; see also Russell v. Anchorage, 626 P.2d 586, 590-91 n.14 (Alaska App. 1981) ("[U]nder the provisions of Criminal Rule 16(b)(4), the knowledge of the officer ... is in effect imputed to the prosecution.").
There is also no question that these statements were not disclosed to the defense. The police reports apparently referred to Andrew as "yelling" and "combative" but there was no description of the specific statements that were later introduced at trial. We also note that one of the statements — the statement in which Andrew requested to take field sobriety tests while at the police station — was arguably exculpatory evidence that the prosecutor was constitutionally required to disclose under Brady v. Maryland.
373 U.S. 83, 87 (1963); see also Nicholson v. State, 570 P.2d 1058, 1064 (Alaska 1977).
We therefore agree with Andrew that the trial court erred in failing to recognize that the State had violated its discovery obligations under Criminal Rule 16(b) and further erred in failing to apply the proper analysis under Bostic v. State. In Bostic, the Alaska Supreme Court held that a discovery violation under Criminal Rule 16, discovered mid-trial, is "presumptively prejudicial to the non-offending party." Pursuant to Bostic, once a defendant "set[s] forth a plausible way in which his or her defense could be prejudiced by the government's failure to make timely disclosure," the burden rests with the State "to disprove prejudice."
Bostic v. State, 805 P.2d 344 (Alaska 1991).
Id. at 347-48.
Jurco v. State, 825 P.2d 909, 916-17 (Alaska App. 1992).
Here, because the court did not find a discovery violation, it failed to hold the State to its burden under Bostic. However, the question for this Court on appellate review is whether this error prejudiced Andrew.
See Sivertsen v. State, 963 P.2d 1069, 1072 (Alaska App. 1992).
Why we conclude that the discovery violation did not affect the jury's guilty verdicts on the failure to stop and resisting arrest charges
At trial, Sergeant Decker testified that Andrew called the officers "fuckers," and that Andrew stated that, if the officers weren't wearing their badges, he would take them out or "kick [their] asses." In addition, Decker testified that Andrew requested to participate in field sobriety tests at the police station. Andrew asserts that these undisclosed statements significantly undermined his defense and his overall trial strategy.
On appeal, Andrew argues that his calling the officers "fuckers" and saying that he would "kick [their] asses" was evidence of his general disdain and disrespect for the officers' authority, supporting the State's allegations that he was guilty of failure to stop at the direction of a police officer, resisting arrest, and fourth-degree assault even though these acts occurred before the alleged statements were made. Andrew also asserts that Decker's testimony undermined his general defense that the State had insufficient evidence to prove that Andrew had committed the crimes charged.
Although we agree with Andrew that Decker's testimony provided the jury with additional concrete examples of Andrew's uncooperative conduct, we do not find that they significantly altered the evidence presented to the jury. At trial, the officers all testified to Andrew's aggressive demeanor, his uncooperativeness, and his alleged physical assault on one of the officers. The officers also testified that Andrew pulled away from the officer's grasp and that two officers had to take Andrew to the ground in order to handcuff him. This testimony was already strong evidence of Andrew's apparent disrespect for the officers' authority. Andrew does not explain how his theory of the case or his attorney's performance at trial would have been altered had he been aware of these additional statements prior to trial.
Moreover, although the prosecutor initially fought to introduce the statements at trial, the prosecutor did not rely on them in the remainder of the trial. None of the other officers were questioned about the statements and the prosecutor did not mention any of the statements in either her closing argument or in her rebuttal. Given these circumstances, there is no indication that the late disclosure of these statements resulted in prejudice to Andrew, or that the evidence of these alleged statements affected the jury's guilty verdicts in this case.
Andrew also contends that he was prejudiced by the late disclosure because he was deprived of the opportunity to question potential jurors during voir dire about how these inflammatory comments toward police officers might affect their ability to weigh the evidence impartially. But there is little to support this contention. Despite the fact that Andrew was charged with physically assaulting a police officer and resisting arrest, Andrew's attorney never questioned potential jurors about their attitudes toward individuals who disrespect authority or who are combative or uncooperative with police officers. Instead, he focused his questioning on Andrew's DUI charge and the venire panel's attitudes toward alcohol and driving under the influence. There is no indication that earlier disclosure of Andrew's specific statements would have led Andrew's attorney to alter his voir dire strategy.
Lastly, Andrew contends that he was prejudiced by the late disclosure of his alleged offer to perform field sobriety tests, because this evidence was arguably exculpatory. But Andrew's arguments on this point relate to the DUI charge, which ultimately resulted in a hung jury and a new trial on that charge. Andrew's arguments with regard to the DUI charge are therefore moot. And Andrew has not shown that this statement would have been relevant to the other charges for which he was actually convicted.
In sum, we agree with Andrew that the trial court erred in failing to recognize the State's discovery violation. But we do not agree with Andrew's claim that the late disclosure of the statements deprived him of a fair trial. Nor do we agree that introduction of these statements at trial had any appreciable effect on the jury's guilty verdicts in this case. We therefore conclude that the court's error was harmless given the circumstances of this case and the jury's verdicts.
Andrew's request for an additional hour's continuance
Andrew also argues that the trial court erred in failing to grant him a one-hour continuance to prepare supplemental cross-examination of Sergeant Decker. We agree with Andrew that a one-hour continuance would have been reasonable under the circumstances. However, Andrew has not indicated how he would have modified his cross-examination had he been provided with this continuance. Moreover, as already noted, following the court's denial of the motion for a mistrial, neither party referred again to the previously undisclosed statements, and none of the other witnesses discussed them. We therefore conclude that any error in denying the short continuance requested by Andrew was harmless.
See Love v. State, 457 P.2d 622, 631 (Alaska 1969). --------
Conclusion
Because we find that Andrew was not prejudiced by the late disclosure of his statements, we conclude that the trial court's mishandling of the discovery violation in this case does not require the reversal of Andrew's convictions. Accordingly, we AFFIRM the judgment of the superior court.